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BOSCHER v. HECKLER

March 28, 1984

Florence BOSCHER
v.
Margaret M. HECKLER, Secretary of Health and Human Services



The opinion of the court was delivered by: POLLAK

 This is the second appeal filed by plaintiff Florence Boscher under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Plaintiff again seeks district court review of the final decision of the Secretary of Health and Human Services denying her claim for disability benefits under Title XVI of the Act.

 This matter first came to this court during the summer of 1981 following the Appeals Council's conclusion that the decision of the Administrative Law Judge (ALJ) denying disability benefits was not defective under 20 C.F.R. § 404.970. In an opinion dated March 9, 1982, I denied both plaintiff's and defendant's motions for summary judgment, vacated the Secretary's decision and remanded the action to the ALJ for reconsideration. In particular, my 1982 opinion found:

 
that the ALJ erred in reaching his decision (a) by failing to accord sufficient weight to Mrs. Boscher's testimony concerning the disabling character of the pain from which she suffered; and (b) by minimizing the significance of the reports which, in my view, tended to corroborate her subjective testimony as to pain and clearly suggest that her complaints of pain were not grossly disproportionate to the medical evidence. Cf. Rodriguez v. Schweiker, 523 F. Supp. 1240 (E.D.Pa.1981). Moreover, the ALJ failed to explain clearly, as he was required to under the Third Circuit's recent decision in Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981), the basis for disregarding the conclusion of Dr. Vasile that Mrs. Boscher's activity was "severely limited" and the testimony of Mrs. Boscher concerning her capacity to work.

 On remand, the ALJ who had originally decided Mrs. Boscher's case was reassigned the case with instructions from the Appeals Council to conduct further proceedings consistent with the decision of this court. The ALJ, finding that no further hearing was necessary in order to comply with my opinion, issued a revised opinion on July 26, 1982 which again found that plaintiff was not entitled to disability benefits. The Appeals Council, in a decision dated September 23, 1982, adopted the ALJ's findings and conclusions and rejected the objections filed by plaintiff.

 This second determination that plaintiff was not disabled was appealed to this court in January, 1984. *fn1" The matter is now before me on cross-motions for summary judgment.

 The basic facts of plaintiff's claimed disability were reviewed in my 1982 decision as follows:

 
Mrs. Boscher was born on April 4, 1919 and has received a tenth-grade education. From 1967 to 1973, Mrs. Boscher worked as a nurse's aide. In 1973, she left her employment complaining of sharp pains in her back and legs which prevented her from performing the many tasks, including lifting, washing, feeding and walking patients, associated with work as a nurse's aide.

 In making his determination that plaintiff was not disabled as defined by the Social Security Act and the appropriate regulations, the ALJ considered plaintiff's testimony at the hearing held before him on January 19, 1981, plaintiff's application for disability benefits filed on February 28, 1980, the various documents filed in the course of processing her request for disability benefits through the Social Security Administration, and the reports of the following physicians: Dr. Robert J. Doman, whose examination of plaintiff was performed at the request of the Social Security Administration; Dr. R. D. Weiss, a radiologist who reported on plaintiff's 1980 back X-rays; and Dr. Salvatore R. Vasile, plaintiff's treating physician since 1974. The ALJ again found that plaintiff's subjective claims of severe pain and inability to perform her past work were not credible. He also concluded that Dr. Vasile's opinion was "not accompanied by a detailed examination or objective clinical findings" and since it was "inconsistent with other medical findings made in the record" it was not "binding." Ultimately, the ALJ found that Dr. Doman's report which showed "only partial restriction of motion" supported the conclusion that plaintiff was not entitled to disability benefits.

 The standards under which the Secretary of Health and Human Services is to make a determination as to disability are well established. The Secretary must find: first, that plaintiff suffers from a medically determinable physical or mental impairment which can be expected to result in death, or which has lasted, or can be expected to last, for a continuous period of at least twelve months, 42 U.S.C. § 423(d)(1)(A); and second, that her impairment is so severe that it prevents her from engaging either in her previous work, or considering her age, experience, education or work experience, "in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The claimant first has the burden of showing that she is unable to return to her previous work. Once the claimant makes this prima facie showing of disability, the burden then shifts to the Secretary to demonstrate that the claimant is able to perform specific jobs existing in the economy. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir.1979).

 Plaintiff also shoulders the burden of proving that she was disabled within the period of insured eligibility. Domozik v. Cohen, 413 F.2d 5, 6 (3d Cir.1969); Koss v. Richardson, 329 F. Supp. 1270, 1272 (W.D. Pa.1971). A disability which commenced after the expiration of plaintiff's insured status does not entitle plaintiff to disability benefits. In this case, the Appeals Council found that plaintiff's insured status ended on September 30, 1978. Thus, the plaintiff must prove that she was disabled prior to that date in order to recover benefits. The ALJ made his finding of nondisability on the basis of the medical-vocational regulations promulgated by the Department of Health and Human Services. 20 C.F.R. § 404.1520. Those regulations establish a five-step process for an ALJ to follow in a disability case. In Santise v. Schweiker, 676 F.2d 925 (3d Cir.1982), that process was determined to be acceptable and not inconsistent with the two-step process described in the previous paragraph. In Santise, the Court of Appeals for the Third Circuit noted that the five-step process in the medical-vocational regulations does not change the respective burdens of the Secretary and the claimant. Thus, "the Secretary's ultimate responsibility for rebutting a claimant's prima facie showing of disability remains unchanged." 676 F.2d at 938.

 The five steps for evaluating a disability claim as established by the regulations upheld in Santise are considered in sequence. First, the ALJ ascertains whether the applicant is currently working. In the present case, there is no question that the plaintiff is not currently employed and has not been employed since the date of her alleged disability in 1974. Second, the ALJ, looking solely at the medical evidence, determines whether the claimed impairment is "'severe,' that is, of a magnitude sufficient to limit significantly the individual's 'physical or mental ability to do basic work activities.'" Santise, supra at 927. If the ALJ determines that the impairment is not severe, the claim is denied. Third, the ALJ determines whether the impairment equals or exceeds in severity certain impairments described in Appendix 1 of the regulations. If the impairment is so listed, the claim is automatically granted and disability benefits are awarded. But in the present case the parties are in agreement that plaintiff's alleged impairment is not included in Appendix 1. Therefore, the ALJ would be required to go on to the fourth step. Fourth, the ALJ evaluates whether the claimant can, despite her limitations, perform her past work. The claim is denied if she can still do the job in which she was employed prior to the onset of the alleged disability. Fifth, the ALJ considers whether the claimant can perform any other work within the economy. At this last step of the process, the ALJ consults the medical-vocational tables or "grids." See Santise v. Schweiker, supra. If the claimant's age, education, work experience, and residual functional capacity fit within the categories defined by these tables, the regulations require that a particular decision be reached. If the claimant's characteristics do not conform to the categories of the "grids," the ALJ may arrive at a conclusion as to disability which is not defined by the "grids" but which is consonant with the regulations. The ALJ in the present case did not reach this last step of the process.

 It is not clear from the ALJ's decision whether he reached his conclusion of non-disability at the second or the fourth step of the five-step process established by the regulations. The brief for the Secretary on the presently pending motion for summary judgment states that "the Secretary reached the fourth step of the evaluation and found that plaintiff's impairments did not prevent the plaintiff from performing her past relevant work as a nurse's aide." Supp. Brief in Support of Defendant's Motion for Summary Judgment at 8. Although the ALJ's "findings" state that plaintiff "has the ability to return to her previous employment as a nurse's aide" (Tr. 116), the ALJ's decision also states that "the undersigned finds the claimant does not have a severe impairment which would prevent her from engaging in work-related functions." This statement is followed by the statement that "it is further found the claimant has the residual functional capacity to return to her former work as a nurse's aide." Thus, it is difficult to determine whether the ALJ stopped at the second step of the process with a further finding that the fourth step would not be met either or whether he found that a severe impairment existed but determined that plaintiff had not satisfied the fourth step of the process. This difficulty is exacerbated by the ALJ's failure to make specific findings on the five steps of the decision-making process in the sequence defined by the regulations. At various points throughout the decision, the ALJ comments upon facts in the record in a manner which suggests that he is considering a particular step of the process but the decision fails to follow the sequential decision-making process described in Santise in any identifiable manner. For the purposes of this Opinion, I will assume that the ALJ ruled (1) that the second step of the process was not satisfied by plaintiff (i.e., that plaintiff did not suffer from a "severe impairment") and (2) that plaintiff did not satisfy step four (i.e., that plaintiff could not still perform her past work).

 This court must grant the defendant's motion for summary judgment and affirm the decision of the Secretary if either of these rulings is "supported by substantial evidence." 42 U.S.C. § 405(g). The term "substantial evidence" has been defined as "such relevant evidence as a reasoning mind might accept as adequate to support a conclusion." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981). However, the Court of Appeals for the Third Circuit ...


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